William W. Jeter
Ellis County Counselor
P.O. Box 128
Hays, Kansas 67601
Dear Mr. Jeter:
As Ellis County Counselor you ask our opinion on whether the Ellis County Register of Deeds may set a policy of waiting until the following day to post any documents received by that office after 3:00 p.m. The Register of Deeds is an elected county officer whose duties are prescribed by law.
K.S.A. 19-1206 states in part:
"Whenever any instrument has been received by the register of deeds for record, the register of deeds shall immediately endorse upon such instrument the certificate of the register of deeds, noting the day, hour and minute of its reception and the fees received for recording the instrument. The date of record of such instrument shall be from the date of filing. Whenever any instrument has been filed as required by this section the register of deeds shall immediately make an entry of the filing in the receiving book of the register of deeds, under the appropriate heading with the amount paid as fee for recording the filing." (Emphasis added.)
Upon receiving instruments affecting real estate, K.S.A. 58-2221 requires the register of deeds "to file the same for record immediately." (Emphasis added.) These statutes clearly require the register of deeds to immediately record documents that are brought to that office.
K.S.A. 19-2601 provides as follows:
"Every county officer shall keep his or her office at the seat of justice of such county, and in the office provided by the county. . . and they shall keep the same open during such days and hours as shall be fixed by the board of county commissioners. . . ." (Emphasis added.)
The Kansas Supreme Court has affirmed the authority of a board of county commissioners to set office hours for all county offices, including those of elected officials. Whitmer v. House, 198 Kan. 629 (1967). See also Attorney General Opinions No. 77-113, 80-86, 81-287, 94-29. In Attorney General Opinion No. 81-287, this office opined that while a board of county commissioners may not require an elected public official to report to work at a particular time, the elected official has a duty to keep his or her office open during the established hours with sufficient office personnel to conduct the county's business. Because the recording of instruments is one of the primary functions of the register of deeds' office, in order to conduct the county's business, the office should record instruments presented for recordation during the hours that the office is open for business.
We have reviewed the provisions of Chapter 19 of the Kansas Statutes Annotated concerning registers of deeds and boards of county commissioners and find nothing therein that would prohibit the board from setting different hours for the register of deeds' office than for other county offices if the board determines that to do so would be in the county's best interest. It is therefore our opinion that each board of county commissioners should determine the hours during which its office of register of deeds should remain open for business. The register of deeds' office should record instruments immediately upon receipt by the office during business hours.
CJS:JLM:DMV:jm